Chapter 5 Part V – Ensuring People’s Power

Election systems

Sri Lanka has in fact been singularly unlucky in the election systems it has adopted over the years. Initially we had the first past the post system used in Britain, whereby the country was divided into constituencies, which elected members by simple majority. There were just a few constituencies which had more than one member, a system designed to ensure representation of different communities where they were mixed up together so that two separate constituencies would not have served the purpose. Thus Akurana usually returned one Sinhala and one Muslim member, while Nuwara Eliya, which became a multi-member constituency for the 1977 election, had one representative each of the UNP, the SLFP and the CWC.

In general however the philosophy was that the winner, by however small a margin, took all. In Britain, the effect of this is mitigated in the country at large in that there are certain constituencies which always stay with one party, so that the party that loses the election still generally has substantial strength in parliament. In Sri Lanka however, where most constituencies are what are termed marginals, ie a small shift either way changes the result, the two major parties found themselves reduced to very small numbers when they lost an election. Thus the UNP got 8 seats out of 101 in 1956 and 17 out of 157 in 1970, while the SLFP had 8 out of 168 in 1977. The party that won conversely had a massive majority, even though its share of the national vote was just around 50%.

Both in 1970 and in 1977 these massive majorities enabled the party in power to do virtually anything it wanted, including the introduction of new constitutions that represented only their own desires, and the extension of the term of parliament. It is conceivable that in 1970 those who perpetrated this injustice actually believed in the slogan that Parliament was supreme, in that it represented the people. The Constitutional principle that representatives elected by the people for a particular period cannot deprive the people of their basic rights was not recognized in those days.

J R Jayewardene however, who presided over the 1977 government and its majoritarian excesses, understood himself the need for better representation and more safeguards, and in his new constitution he introduced proportional representation. For the future he instituted an election system whereby voting was by district, with the quota of seats for the district divided according to the proportion of votes each party got within that district as a whole. On that system a majority of two thirds in Parliament would have represented a high proportion of the population, so allowing certain measures to be passed by such a majority would have been based on their having the support of representatives of well over half the people. However he passed several measures with the two thirds majority he had obtained under the earlier system, including a bill to amend the constitution to extend the life of that parliament by a further six years.

Initially the system of proportional representation Jayewardene introduced simply required voters to select a party. Whatever seats the party won would be allocated to its candidates according to their position on the party list. However, in the first election held under that system, the election for District Development Councils in 1981, Jayewardene realized its drawbacks. Those who were not placed high on the party list realized they could not be elected. Sometimes they crossed over to another party which would place them high on its list. If they remained on the list, they did not bother to canvass.

Jayewardene therefore amended the legislation to allow votes upto three choices for candidates on the list. In principle the idea of allowing the voter choice was a good one, but this would have been satisfied by allowing one choice per voter. Candidates could then have campaigned in designated areas, against candidates of the opposing party. However, by allowing three choices, Jayewardene ensured that all candidates would campaign actively all over the district.

Though he succeeded in his aim, it was at great cost to the country. To cover an entire district in active campaigning required a lot of money, and soon it became apparent that those who did not have massive resources had to acquire them to stay in the race. There was also increased violence, since now candidates were campaigning not only against candidates of other political parties, but against the other candidates on their own list. In the process of putting up posters, or tearing down those of other candidates (especially those of one’s own party), paid workers (who were traditionally plied with liquor to keep them active) tended to turn violent.

Other aspects of the legislation Jayewardene introduced with regard to elections made it clear that he was not really concerned with principles. One provision was that any member of Parliament who ceased to be a member of the party from which he had been elected would automatically lose his seat. The argument was that, since a member was elected only by virtue of a vote for the party, he had no individual right to remain as a representative if he no longer belonged to the party. This provision was however implemented even for members of the 1977 parliament who had been elected to constituencies as individuals – except for those who crossed over from the opposition to his party, who were kept in parliament through a special constitutional amendment. And even when the system of preferences was introduced, according to which members were selected according to the number of preferences they had obtained as individuals, the provision that they would lose their seat if they were no longer in the party was kept on.

Jayewardene’s insistence on this provision arose from the fact that it enabled him to exercise a tight control over his party members. While it could be argued that members of political parties should not be allowed to change sides – and Jayewardene had first hand experience of what this could entail, since he had been closely associated with the offering of financial incentives that brought down Mrs Bandaranaike’s first government in 1964 – the provision entailed that members expelled by their party also lost their seats. Thus, by threatening expulsion against anyone who did not toe the party line, Jayewardene ensured absolute obedience to the party. This meant himself, as party leader, since there has never been a tradition of internal party democracy in Sri Lankan political parties.

Jayewardene thus destroyed an important principle of parliamentary democracy, which is the independence of members of parliament. The main justification of parliament is that it acts as a check on the executive and, while on the British system members of the ruling party generally support the government, they are free to criticize and question. Turning them into mere lobby fodder, programmed to support the government under any circumstances, makes them redundant.

As time passed MPs realized that they could invoke the authority of the Supreme Court against arbitrary expulsions, but that sets them in a position of hostility to the party. This therefore leads to crossing over to the other side, but that is usually done only when sufficiently large numbers can be got together, to ensure a change of government. Since that is not likely for considerations of conscience alone, the result is that the influence of money, or of incentives including promises of future office, has increased.

When Jayewardene introduced the system of preference votes, he realized that some good people might be put off by the system, or find it difficult to get themselves elected. He therefore introduced what is termed the National List, according to which the strange figure of 29 seats is allocated to political parties according to the proportion of votes they receive nationwide. This was supposed to ensure that a few capable people obtained entry into Parliament. In some cases this has happened, but again often such seats are given to individuals who have made more concrete contributions to the party.

Finally, Jayewardene devalued the position of member of Parliament still further, by reducing to negligible proportions the number of those who were simply members of Parliament without any executive office. He had Ministers, and Project Ministers, and Deputy Ministers, and District Ministers, so that anyone with any competence, and several with none, were part of the executive branch of the government. The main opposition party was in disarray, with only 8 members. The party leading the opposition (the TULF) deliberately avoided national issues on the grounds that it represented a region requiring separate treatment. Thus the capacity of parliament to function as an independent entity was virtually destroyed.

Unfortunately the bad precedent set by Jayewardene has been continued by several of his successors. In 2001 there was an attempt to limit the number of those in the Cabinet, but unfortunately this was by agreement alone. The failure to institute such a provision in the Constitution (as has happened in India, where executive office is confined to no more than 10% of the legislative body in question) led to grave abuse on the part of the government elected shortly afterwards, and by the following regime too.

Given the cost to the country of such excesses, as well as the incapacity of parliament to fulfil its own functions properly, in a context in which a large proportion of parliament holds executive office, it would be desirable to specify in the Constitution the number of Ministers that should be appointed and their areas of responsibility. This is the case in America, where the Cabinet is restricted now to 14 persons, each with a specific role. Of course there will be changes as social requirements change, and it would make sense initially to permit two or three extra ministries for particular tasks that may arise. But the principle of restrictions based on rational assessments, rather than appointments given for political rather than national considerations, should be introduced and strictly upheld.

The composition of the executive

The most important feature of Jayewardene’s 1978 Constitution (which was introduced simply as an amendment to the previous Constitution, with not even a pretence of consultation as had occurred after the 1970 election) was the introduction of an Executive Presidency. This was an idea Jayewardene had mentioned during the election campaign, and he therefore saw his electoral victory as a mandate for this radical change.

One reason for his critique of the 1972 Constitution was the anomalous position of the President. The Soulbury Constitution gave full power to the Prime Minister through his / her command of a majority of Parliament. The 1972 Republican Constitution, in basing itself on a mandate from the people, as opposed to a Constitution granted by the British King and Parliament, confirmed the actual position through asserting in the Constitution the sovereignty of Parliament. Its basic philosophy was that power belonged to the people, but this was exercised by the Parliament chosen by the people. The Legislative power of the people was exercised direct, its executive power through the Cabinet selected by Parliament, and its judicial power through Courts appointed by Parliament.

At the same time, in common with all other Republics, the framers of the Constitution recognized the need for a President, who was officially the Head of State. Instead however of ensuring that that Head of State was appointed in a manner that made clear his connection with the people (either by direct election, or by election by Parliament), it handed over appointment of the President to the Prime Minister. This represented the actual position that existed previously, when the Prime Minister recommended a Governor General to the King. It also represented the actuality of a situation where the Prime Minister commanded a majority in Parliament. But by making the President in theory as well as in practice the creation of the Prime Minister, the 1970 Constitution removed from the office the sort of dignity that was essential, however subordinate the position might be in practice.

Jayewardene, in criticizing such a Presidency, also suggested that, for ease of administration too, the President should be outside Parliament and should exercise executive powers. He proposed a President directly elected by the people, on the American or the French model. In his reflections on the subject, he followed the logic of the American and French systems and proposed that the Cabinet too should be outside Parliament, since this would increase efficiency. Parliamentary control of the executive would be maintained through the legislative and budgetary powers of parliament, as well as a right to summon ministers before it to respond to questioning.

Unfortunately he ignored this aspect of his theorizing when he found himself with near absolute power, following his massive electoral victory in 1977. He was virtually unquestionable for, along with Senanayake, most of those who had held cabinet office in the 1965 UNP government were dead. Jayewardene then was much more senior than almost all those who remained, and in fact he soon dismissed his only contemporary who had been a cabinet minister with him in the fifties.

His failure then to implement the proposal he had advanced was clearly his own decision, rather than the result of political compromise. The reason for this may have been recognition that his control of parliament was enhanced by continuing the requirement that the cabinet be drawn from parliament – the executive would not be criticized by members of his own party if they were hoping to join it, and if its senior members were present with them in parliament. Another reason may have been that he was winning over members of other parties, by offering them executive positions, and it would have been embarrassing if they had to vacate their parliamentary seats, to be filled by nomination by either himself or by the party to which they had originally belonged.

Whatever the reason, it has led to a situation practically unique to Sri Lanka, where the head of the Cabinet presides over colleagues who are all in Parliament whereas he himself is not. The role of Parliament as a check on the executive is restricted because the dominant forces in Parliament belong to that executive. That is a drawback the Sri Lankan system shares with political systems based on the Westminster model the world over. But one strength of that model, that the head of government is a member of parliament, subject to parliamentary authorities, and facing criticism in person, is lacking.

Conversely the strengths of the American or French model are excluded, namely the capacity of parliamentarians to build up their own authority without being under the shadow of the executive, and the possibility of drafting into the cabinet talents that are unwilling to subject themselves to electoral politics. Sri Lanka then, in part because the 1978 Constitution was introduced without much thought, finds itself having the worst of both worlds.

Another anomaly in the Constitution is the way in which the balance of power between President and Prime Minister is to be interpreted. This may not be much of a problem when the President and Prime Minister belong to the same party. However, when they belong to different parties, the potential for conflict is considerable.

The Constitution specifies that the President shall appoint as Prime Minister, not the person who commands the confidence of Parliament, but the person who in his opinion commands that confidence. It could be claimed that this allows the President discretion when there is doubt, but that when the position is clear the President cannot appoint an inappropriate person, since a subsequent vote in Parliament will make the position clear. But this simply begs the question as to who interprets, and how, what doubt there might be – and it seems to preclude legal challenges with regard to patent abuse of discretionary powers.

Even more seriously, with regard to the appointment of the rest of the Cabinet, the President seems to have absolute discretion, subject to the provision that he may consult the Prime Minister if he thinks it necessary. It has been claimed that this means he need not consult the Prime Minister when they are of the same party, but should if they are not, but that is clearly a matter for interpretation. And since the actual powers of the President with regard to particular areas of responsibility are not clearly defined – though recently the Supreme Court has ruled that powers with regard to Defence are necessarily the prerogative of the President – the possibility of peaceful cohabitation, as has occurred in France when the President and Prime Minister are from different parties, is extremely tenuous.

It is necessary then for Sri Lanka to decide, before further confusion arises, which system best suits its needs, and to move towards institutionalizing such a system with proper understanding of the principles underlying it. At the same time it is necessary also to consider the relevance of each of these systems to other tiers of government, whether provincial or local.

It is interesting that, despite his proclaimed commitment to an Executive Presidential system, Jayewardene never contemplated it for Provincial Councils. The examples of directly elected mayors, as in Bangkok or London, or governors, as in the United States, suggests that a directly elected Chief Executive Officer may be more efficient for units such as Provinces, especially in a small country where multiplying entities that have no clearcut functions contributes to an even greater waste of resources than our present administrative system entails.

In conclusion then, it would seem that Sri Lanka needs to work out a constitutional system that would enhance responsiveness to the needs of its people at all levels. This should be based on study of systems elsewhere, including understanding of the underlying principles. Particular attention should be paid to providing safeguards against majoritarianism, for which understanding of subsidiarity and the manner in which people at all levels feel they are participants in decisions that affect them, are essential. People also need to feel, and to be empowered, by the way in which their representatives are chosen and are made answerable to them, for which transparency and accountability are vital.

Study of past constitutions, and the blunders that have been made in forming and implementing them, may help in this regard. But it is also essential to ensure that politicians realize their limitations, and that the best safeguard for the nation as well as themselves is institutionalizing the checks and balances that will prevent deliberate or accidental abuse.